The Rite of Spring in the world of ADA and FHA litigation is a lot more like Stravinsky’s ballet – which terminates in the death of the lead character – than the bunnies and ducks that we usually associate with April. But whatever your spring festival, here’s the latest in the case law.

Corona Virus and Title III of the ADA

A great deal of attention has been paid to whether the disease Covid-19 constitutes a disability under the FHA and ADA. Crochet v. California College of the Arts, et al..,2020 WL 1815741 (N.D. Cal. Apr. 9, 2020) looks at a different aspect of the pandemic – whether injunctive relief matters when a physical place of business is only operating remotely. The plaintiff sought a preliminary injunction under the FHA to stop what she considered excessive rent charges. The court refused on the simple principle that money damages was an adequate remedy. This section of the opinion is worth reading because of its discussion of the principle that ordinary equitable limits on injunctive relief do not apply to the FHA. The plaintiff also wanted an injunction requiring the defendant to offer her the same level of shuttle bus service as other students. This the court refused because with the current California shut-in order there were no shuttle busses running and they were unlikely to start running before the plaintiff graduated. This raises the interesting question of how courts should deal with Title III ADA cases filed against businesses that are now shut down or offering only delivery service. Most cases will settle, but those that move forward will require deeper thinking about standing and available relief when the future is so uncertain. More

“Beware the Ides of March” was what the prophet warned Caesar according to Shakespeare. It didn’t go well for him, but the latest batch of ADA and FHA decisions are something of a mixed bag. Before getting to that news though I want to make sure everyone who wants one has a copy of my white paper on HUD’s new guidance on service and assistance animals. If you are interested just email me. You will be added as a subscriber to this blog and I’ll email a copy of the paper. But now on to the news.

Standing and intent to return – the Strojnik factor

It is elementary that an ADA plaintiff must establish some likelihood of a future injury in order to have standing. Strojnik v. 1530 Main LP, 2020 WL 981031 (N.D. Tex. Feb. 28, 2020) is one of a small number of Texas cases addressing this issue. Judge Brown’s analysis is worth reading because it looks at the 5th Circuit authorities and explains why the “deterrent effect” doctrine is not sufficient to give a plaintiff standing in the absence of any intent to return. The “deterrent effect” doctrine is, in fact, a mis-named and mis-used substitute for intent to return. A plaintiff who never intended to go back cannot have been deterred from going back by some condition at the defendants’ place of business. Sloppy language and slopping thinking in the Nnth Circuit are the origin and support of the ADA litigation industry. More

Happy Valentine’s Day. The last few weeks have brought the usual assortment of cases, some of more interest than others. I’ll lead with a personal jurisdiction case that has the potential to be important for website accessibility lawsuits.

ADA Website Litigation – an important personal jurisdiction case.

Mercer v. Rampart Hotel Ventures, LLC, 2020 WL 236843 (S.D.N.Y. Jan. 16, 2020) presents a familiar fact pattern. The disabled plaintiff purportedly visited the hotel website for a hotel in Louisiana. She was unable to find information about accessible rooms and therefore exited without trying to book a room. She then sued based on a violation of the ADA, whose regulations require such information, and under New York Law. The Court’s discussion of long arm jurisdiction should be immensely helpful to out-of-state defendants in website cases. The Court first rejected long arm jurisdiction based on a transaction between the plaintiff and defendant because defendant never tried to book a room. It then rejected an argument that other transactions between the hotel and citizens of New York were relevant, finding they were unconnected to the plaintiff’s claims. The next round of briefing in this case will be crucial, for the plaintiff was granted leave to amend to add a claim for personal jurisdiction based on the commission of tortious acts in New York. Courts commonly analogize ADA Title III claims when choosing a statute of limitations: “because most discrimination claims involve “injury to the individual rights of a person” and are analogous to personal injury tort claims. Meriwether v. ABC Training/Safety Council Texas Gulf Coast Chapter, 2016 WL 8711726, at *2 (N.D. Tex. Oct. 24, 2016), report and recommendation adopted, 2016 WL 8711279 (N.D. Tex. Nov. 18, 2016), but to say an ADA claim is analogous to a tort is not the same as saying it is a tort. Indeed, if it were, ADA violations could give rise to a state law action in tort. If the court rejects that notion that an ADA violation constitutes “tortious conduct” under the New York Long Arm Statute it may well become impossible for serial plaintiffs to fuel the ADA litigation machine with casual visits to websites of out-of-state hotels and other businesses.

The complexities of accessibility in federal programs.

HUD and federal sovereign immunity under the ADA, FHA and Rehabilitation Act

Standing for complaints of administrative action where federal sovereign immunity is waived.

State sovereign immunity under the ADA and FHA

The elements of a failure to accommodate claim

And of intentional discrimination claims.

The most interesting thing to me about the case is the facts that gave rise to it, for the complaints that will ultimately go forward seem to reflect the state agency’s stubborn refusal to be helpful to a disabled couple. If the allegations are true the state would not provide forms and letters with a font big enough for the vision disabled plaintiffs to read them and refused to meet either at their residence or by video conference to accommodate their inability to travel. This, by the way, was after the parties had reached a conciliation agreement that supposedly resolved the matter. Agencies, landlords and others who want to stay out of court should think of the accommodation process as a shared effort to solve a problem, not an adversary proceeding to be won or lost.

Bone v. U. of N. Carolina Health Care System, 2019 WL 4393531 (M.D.N.C. Sept. 13, 2019), like Ramos, has a complicated set of facts and an equally complicated series of rulings on issues that include associational standing and liability for the acts of contractors. It also shares the appearance that nobody associated with the defendants was really paying attention, which is always a problem in a bureaucracy. It’s quite possible the low level employee charged with delivering braille invoices to the plaintiffs thought a few months was reasonable turn around time given the seemingly eternal delays associated with hospital billing and reimbursement, but from the plaintiff’s standpoint getting collection notices for invoices he couldn’t read was disturbing. One question, however, is never raised or answered. There are a large number of handheld text reading devices available for the blind, and it would seem such devices could be a reasonable substitute for braille. At what point does the refusal of a disabled person to take advantage of new technologies make his or her request for accommodation unreasonable? More

I’ve been posting a lot of blogs in the last few days in an effort to catch up with a backlog of important or at least interesting cases. Just as I was wrapping up this Quick Hits blog the Sixth Circuit handed down its decision in Brintley v. Aeroquip Credit Union, precipitating the blog’s publication. Subscribers who feel they are being spammed can rest assured the pace of posts will slacken – assuming the pace of ADA and FHA accessibility developments slackens, of course. More

Richard M. Hunt

I defend businesses nationwide in ADA and FHA accessibility lawsuits and consult with businesses and other attorneys concerning how to promptly and effectively deal with ADA and FHA demands, minimize litigation risk, and obtain meaningful compliance with the ADA and FHA. For more information about this feel free to email me at rhunt@hunthuey.com or visit our firm web site, hunthuey.com